As followers of the African Court and The ACtHPR Monitor will know, the case of Ingabire v Rwanda will undoubtedly rank as a watershed case. For those new to this matter, may I suggest reading previous posts on the case here, here, here, here and here (I’ve posted a lot on this!) I also had an article published in the latest edition of the African Human Rights Yearbook that looks at the case extensively. Its free to download and can be found here.
So, in this post I wanted to close the circle and have a look at this final leg of the case; the reparations decision that came out in December 2018. This decision, barring a request for review or interpretation, sees the end of one of the most fascinating cases before the African Court. As I’ve briefly discussed above, this case had everything; high profile applicant, country withdrawal, unprecedented decisions on that withdrawal, judgement on the merits and more. The reparation judgement continues this theme with some interesting points to note. At the outset, it’s worth noting that this reparations judgement is only the African Court’s fourth reparations judgement (in Mtikila v Tanzania no reparations were awarded, in Zongo et al v Burkina Faso and Konaté v Burkina Faso reparations were awarded). The African Court is beginning to build up a substantial number of judgements on the merits, but the reparations elements for several of these cases remains wanting.
But perhaps it’s still worth just giving a little context about this case in a few sentences. Victoire Ingabire, a prominent Rwandan opposition politician, petitioned the African Court alleging that her trial in Rwanda on genocide-denial type charges fell short of the right to fair trial and the prosecution itself violated her right to freedom of expression, both of which are enshrined under the African Charter and ICCPR. Its very much worth noting that in-between Ingabire’s petition and African Court’s judgement, Rwanda withdrew its Additional Declaration allowing individuals and NGOs direct access to the African Court. Despite this withdrawal the African Court continued to consider the case and found in Ingabire’s favour. However, as is usual practice, the African Court deferred its decision on reparations to a later date, allowing both parties to make further submissions specifically on reparations. In terms of procedure, perhaps unsurprisingly, Rwanda filed no submissions on reparations. Given Rwanda’s withdrawal of its Additional Declaration during this case this is was expected, but it wasn’t necessary. Rwanda could have continued to litigate this case and still preserve its withdrawal. But given Rwanda’s reasons for withdrawal perhaps it simply couldn’t countenance the idea of wading into reparations debates?
Removing the Convictions
The African Court reiterated that reparations are required to make full reparation for the damage caused to the victim. Interestingly, the African Court added that when considering reparations, it will consider the “expressed wishes of the victim” confirming perhaps the African Court’s approach that the reparations stage should very much be victim-lead rather than lead by the African Court and its judges.
Despite noting the need to consider the wishes of the victim, the African Court did not grant Ingabire’s request to for her convictions to be expunged; perhaps her biggest wish? Whilst the African Court stated that the role of reparations is to “erase all consequences of the wrongful act and restore the state which presumably have existed if that act had not been committed” it stopped short of ordering Rwanda to remove Ingabire’s conviction from the record. Whilst the fact that Ingabire was released from prison in November 2018, just before the reparations judgement was released, may have played some role, the fact remains that Ingabire still has a criminal conviction for conduct which the African Court has stated was a legitimate form of freedom of expression, following a trial which it found was unfair. The African Court seems to read Ingabire’s request to be the expunging of the sentence only, but I’m not so sure. I read the request as the expunging of the conviction too (see paragraph 6 of the Reparations Decision) If this is indeed the case, could the African Court not have ordered Rwanda to remove the conviction too? The African Court’s powers would suggest so.
Material Reparations
As to material reparations, Ingabire claimed $200,000 for procedural costs including lawyers’ fees. The African Court examined the fees paid by Ingabire to her lawyers and granted the sums incurred. This sends a clear message that applicants can seek to obtain such costs as long as they are properly detailed and accounted for in supporting documents. What is interesting is that the African Court granted fees not only for litigating the case before the African Court, but for the lawyers defending Ingabire in the domestic courts too. Therefore, the African Court seems to have considered legal fees in the widest possible stance; not only African Court litigation but also the costs of the defence against charges in Rwanda that the African Court ultimately found violated Ingabire’s right to fair trial and freedom of expression. Future applicants should therefore not only seek to cover the costs of African Court litigation but also all other associated lawyers costs in domestic cases too.
Moral Prejudice
Ingabire also made a claim for moral prejudice, arguing that since her imprisonment her political and family life have been shattered. For Ingabire herself, the African Court seemed to be in little doubt that she had been targeted for her words and views, and that her reputation and political future had suffered, agreeing that she deserved reparations.
Ingabire also claimed reparations on behalf of her husband and children who had also suffered physically and emotionally as a result of her prosecution and conviction. Taking its lead from its Zongo et al v Burkina Faso reparations judgement, the African Court confirmed that direct or close family members who suffer physically or psychologically from a violation are also victims. This is a welcome continuation of the African Court’s expansive views on who can claim reparations. Like the material costs discussed above, the African Court’s key determination in awarding such reparations was the documentation that Ingabire produced to support these claims. In particular, Ingabire provided medical reports to support her description of her husband’s suffering, although such evidence was not, perhaps sensibly, required of Ingabire’s children. In total, the African Court awarded $100,000 in reparation for moral prejudice. On final point. The African Court noted that Ingabire received a presidential pardon, leading to her release, and that this constitutes a form of reparation for moral damage, but this does not preclude the payment of monetary compensation for the violation of the right to freedom of expression. This stance sets an interesting precedent moving forward. Member states can attempt to rectify a violation that will go some way to easing a situation, but this will not block the African Court’s awarded of financial compensation too.
Conclusion
In conclusion, this case marks only the third time the African Court has awarded reparations, and largely follows the African Court’s previous decisions. In terms of material reparations, it’s interesting to see the expanding the potential costs of lawyers to cover domestic work as well as the African Court litigation. In terms of moral prejudice, the African Court continues to maintain an expansive approach to who can be considered a victim, including direct or close family members. What comes out from all these points however is the requirement that applicants seeking to claim reparations provide as much documentary evidence as possible. With supporting evidence, the African Court seems ready to consider an extensive interpretation of reparations. Without supporting evidence, reparations claims are likely to flounder. Of course, it is Rwanda who is required to pay the reparations, not the African Court, and this is likely to be the sticking point for Ingabire receiving any of the money she has been awarded. I have no inside knowledge of this, but my best guess is that given the context of the case, Rwanda is unlikely to ever pay up. I hope I am wrong, but I suspect Ingabire may be waiting a long time before Rwanda fully closes the circle on this case.